On 26 and 27 January 2017, Philippa Southwell from Birds Solicitors, Maria Moodie from Garden Court Chambers and Silvia Nicolaou Garcia from Simpson Millar's public law department delivered a joint legal workshop at Missing Children Europe’s Lost in Migration conference on the legal protection of unaccompanied trafficked children in Europe.
The conference was organised to coincide with the informal Justice and Home Affairs Council that took place at the same time in Malta and to mark the commencement of Malta’s six-month presidency of the Council of the European Union.
The conference brought together 160 professionals and key stakeholders concerned with the protection on migrant children’s rights across Europe, including the UN Special Rapporteur on the Sale of Children, Child Prostitution and Child Pornography, the Director of EASO, the Director of Europol and H.E Maria Louise Coleiro Preca, President of Malta. Colleagues from the UK including ECPAT UK, the Children’s Society and Missing People also attended the conference.
During the course of the conference, both the president of Malta and Maud de Boer-Buquicchio, President of Missing Children Europe and UN Special Rapporteur on the Sale of Children, Child Prostitution and Child Pornography referred to a number of alarming statistics;
According to a recent EUROPOL investigation, at least 10,000 refugee children have gone missing since arriving in Europe.
Currently 30% of all people seeking asylum in Europe are children, half of whom are under the age of 14 years old.
Since January 2016, 38% of those who have arrived in Greece and 91% in Italy are children.
It was widely accepted that refugee children are going missing as a result of poor reception conditions, complex family reunification procedures, a lack of information, delay in the appointment of a guardian, lack of adequate training for front-line professionals and a lack of coordination at national and international level.
The legal workshop delivered by Philippa, Maria and Silvia concentrated on the following areas of risk;
- More protection for child victims of trafficking at risk of going missing
There already exists a number of legal obligations within the EU (and in particular the UK) which are currently not being effectively adhered to and implemented to prevent migrant and refugee children from going missing. The existing legal obligations are triggered as soon as authorities come into contact with children and young migrants who have been trafficked into Europe and who go missing or are at risk of going missing when they first arrive to the country, when they are intercepted by the authorities, when they are released from custody or detention or whilst under the care of local authorities/social services
- Non-prosecution of victims of trafficking
All too often victims of trafficking, in particular child victims of trafficking who have entered the criminal justice system (having been compelled to commit an offence by their traffickers) continue to face unfair prosecution as a result of mindless prosecutors, poorly informed defence lawyers and the courts. There already exists a number of international, regional and domestic legal instruments designed to create defences for victims of human trafficking that are not consistently applied. Professionals coming into contact with victims of trafficking, who may not have been identified as such, are under a duty to consider their circumstances and any indicators of trafficking before proceedings to arrest and charge these victims for criminal offences they have been compelled to commit as a direct consequence of their trafficking situation.
- The role of age assessments in safeguarding children
The fair and lawful determination of age is a gateway into a considerable body of legal safeguards and protections for unaccompanied child asylum seekers and therefore the importance of getting it right cannot be overstated. Recommendations were made for age assessment to be viewed as a child protection issue for which there should be a harmonised set of procedural and substantive standards of fairness set across Europe which move away from unreliable and unethical invasive medical examinations and move towards a holistic assessment of age conducted by independent bodies whose decision can be challenged in front of an independent tribunal. There should also be a strengthening of the benefit of the doubt in favour of the child and the ‘bright line’ cut off of 18 years old should be relaxed for this highly vulnerable group.
The conference conclusions aim at the better protection of children in migration can now be accessed here and include 10 operational and policy recommendations and 7 cross-cutting recommendations on the overall policy framework, data and funding (summarised below)
- Better accommodation and reception arrangements for children
- More efficient procedures and international cooperation, including the application of international protection and Dublin procedures
- Qualified and trained guardians to be swiftly appointed for all unaccompanied and separated children
- Better information for children and respect of the right to be heard
- Identification and implementation of durable solutions for children, in line with their best interests
- Support for children to move safely and regularly from one country to another when it is in their best interests
- More resources for awareness raising and training of all professionals working with children
- Formalisation of the cooperation between professionals involved in the situation of a missing unaccompanied child
- Stronger cross border cooperation in child protection, on both governmental and non-governmental level, including when responding to disappearances
- Any personal data of children should be used exclusively for the sake of protection, never in the aim to manage migration or return of children
Delegates called for an EU Action Plan on all refugee and migrant children at an EU level under which national action plans could be developed to promote the well being of refugee and migrant children. The proposed action plan could build upon the Action Plan on Unaccompanied Minors 2010 – 2014.
These recommendations will be sent to EU ministers on 22 February 2017 and are open to endorsement from civil society, NGOs, international organisations, politicians, lawyers and academics.
For more contributions from other workshops, the hashtags which were used at the conference were #lostinmigration and #nametheunamed.